Bigelow, Vincent Jr. - Order, January 23, 2003

Order, January 23, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

an Alleged Violation of Article 17 of the Environmental Conservation Law (ECL)
and Parts 612 and 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR)

- by -

VINCENT D. BIGELOW, JR.

Respondent

ORDER

Case No. 98-67

R9-4657-98-08

WHEREAS:

Pursuant to a Notice of Hearing and Complaint, dated March 9, 1999, the New York State Department of Environmental Conservation (the "Department") Staff commenced an administrative enforcement proceeding against the Respondent. The Department Staff re-issued the Notice of Hearing and Complaint in August, 2000. The Notice of Hearing and Complaint and the accompanying supporting papers were forwarded to the Department's Office of Hearings and Mediation Services for review by an Administrative Law Judge ("ALJ"). The ALJ's Default Summary Report (attached) is hereby adopted in this matter.

Respondent Vincent D. Bigelow, Jr., was served with a Notice of Hearing and Complaint on August 8, 2000. The service of process was accomplished in accordance with 6 NYCRR Section 622.3 and the Civil Practice Law and Rules. Respondent's time for serving an Answer to the Complaint expired on August 28, 2000, but the Respondent did not submit an Answer. Failure to answer a complaint is grounds for a default judgement pursuant to 6 NYCRR Section 622.15(a).

Department Staff made a Motion for Default Judgment, dated January 16, 2001, which demonstrated that the Respondent had failed to serve an answer on the Department in a timely manner, as required by 6 NYCRR Section 622.4.

The Respondent owns a petroleum bulk storage facility located at 1002 Abbott Road, Buffalo, New York 14220. Pursuant to ECL Section 17-1005 and 6 NYCRR Section 613.5, the Respondent was required to conduct tightest testing of the tanks at this facility. The Respondent did not conduct such testing. Pursuant to ECL Section 17-1009 and 6 NYCRR 612.2, the Respondent was required to register the facility with the Department, but the Respondent did not do so.

In the August, 2000 Complaint and in the January 16, 2001 Motion for Default Judgement, the Department Staff requested a civil penalty of $8,000.00 and an order requiring the Respondent to comply with ECL Article 17 and 6 NYCRR Sections 613.5 and 612.2 and to timely register and test for tightness his underground storage tanks as set forth in the Complaint.

A copy of the Motion and supporting papers were filed with the Office of Hearings and Mediation Services and the matter was assigned to an Administrative Law Judge. Attached hereto is a copy of the ALJ's Summary Report, which I adopt.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

Pursuant to Section 622.15 of 6 NYCRR, Respondent is found to be in default and having waived his right to a hearing. Therefore, Department Staff's allegations against Respondent in its Complaint are deemed to have been admitted by Respondent.

Respondent violated Environmental Conservation Law Sections 17-1005 and 17-1009 and 6 NYCRR Sections 613.5 and 612.2 by failing to timely register his petroleum bulk storage tanks with the Department and to provide for timely testing of said tanks for tightness.

Respondent shall pay a penalty in the amount of Eight Thousand ($8,000.00) dollars within 30 days of service of this Order upon the Respondent; and shall provide for timely registration and testing of his tanks as set forth in Staff's Complaint.

The Respondent shall cease and desist from any and all future violations of the ECL and rules and regulations promulgated pursuant thereto.

All communications from the Respondent to the Department concerning this Order shall be made to the Department's Region 9 Director, 270 Michigan Avenue, Buffalo, New York 14203-2999.

The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

an Alleged Violation of Article 17 of the Environmental Conservation Law
and Parts 612 and 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York

by

VINCENT D. BIGELOW, JR.,

Respondent

DEFAULT SUMMARY REPORT

Case No. 98-67

R9-4657-98-08

Summary

The present report concerns a motion for a default judgement which the Region 9 Staff of the Department of Environmental Conservation (the "Department Staff") served in the matter of Vincent D. Bigelow, Jr. (the "Respondent") pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). The report recommends that the motion be granted.

Proceedings

On August 8, 2000, the Department Staff served a Notice of Hearing and Complaint upon the Respondent. The Complaint alleged that the Respondent violated 6 NYCRR Section 613.5 and Environmental Conservation Law ("ECL") Section 17-1005 by failing to conduct tightness testing at a petroleum bulk storage facility owned by the Respondent. The Complaint also alleged that the Respondent violated 6 NYCRR Section 612.2 and ECL Section 17-1009 by failing to register his facility with the Department. The facility is located at 1002 Abbott Road, Buffalo, New York 14220.

The Notice of Hearing and Complaint were personally served upon the Respondent by Environmental Conservation Officer Michael S. Phelps on August 8, 2000.

The Notice of Hearing required the Respondent to serve upon the Department an Answer to the Complaint within 20 days of receipt of the Complaint. The Notice further stated that failure to timely answer would result in a default and a waiver of the Respondent's right to a hearing. The Notice stated that the Department's Office of Hearings would set a date for hearing upon the filing by the Department Staff of a Statement of Readiness for Adjudicatory Hearing. The Notice did not set a specific date for a pre-hearing conference.

As of January 16, 2001, the Department Staff had not received any Answer nor any other contact from the Respondent. The Respondent also has not contacted the Department's Office of Hearings and Mediation Services.

On January 16, 2001, the Department Staff moved for a default judgement based on the Respondent's failure to answer the Complaint. The motion was sent to the Office of Hearings and Mediation Services of the Department of Environmental Conservation, with a copy sent to the Respondent. As of February 20, 2002, the Office of Hearings and Mediation Services had not received any response from the Respondent concerning the motion for a default judgement, nor an Answer.

Discussion

The procedures for a default judgement are provided in 6 NYCRR Section 622.15. The regulation provides that a respondent's failure to file a timely answer constitutes a default and a waiver of the respondent's right to a hearing. In this event, the Department Staff may make a motion to the Administrative Law Judge ("ALJ") for a default judgement. Failure to appear at a hearing or at a scheduled pre-hearing conference also constitute defaults, although those circumstances are not under consideration in the present case.

6 NYCRR 622.15(b) requires that a motion for default judgement contain: (1) proof of service upon the respondent of the notice of hearing and complaint or other such document which commenced the proceeding; (2) proof of the respondent's failure to appear or failure to file a timely answer; and (3) a proposed order. The regulation further provides that upon a finding by the ALJ that the requirements of Subdivision 622.15(b) have been adequately met, the ALJ will submit a report, which will be limited to a description of the circumstances of the default, and the proposed order to the Commissioner.

In the present case, the Department Staff has submitted an affirmation by David F. Stever, Esq., Assistant Regional Attorney for Region 9, which proves that the Notice of Hearing and Complaint were served upon the Respondent on August 8, 2000 and that the Respondent failed to provide any Answer. The Notice of Hearing informed the Respondent that failure to answer would constitute a default and would result in waiver of the right to be heard in the matter. The Notice of Hearing directed that the Respondent file an Answer with the Department within 20 days following receipt of the Complaint, which would have been August 28, 2000. The Respondent did not file an Answer by this date nor have any other contact with the Department as of January 16, 2001.

The Department Staff submitted a proposed order with the motion for a default judgement.

Thus, the requirements of 6 NYCRR 622.15(b) have been met with respect to the motion for a default judgement in this matter. In accordance with 6 NYCRR 622.15(c), this summary report will be submitted to the Commissioner accompanied by a proposed order.

Recommendation

The Commissioner should grant the default judgement requested by the Department Staff in this matter.